The CERC has jurisdiction to adjudicate upon disputes involving generating companies or transmission licensees in regard to matters connected with clauses (a) to (d) of Section 79(1). Clause (b) obviously relates to the power of CERC to regulate the tariff of generating companies other than those owned by Central Government, if such generating companies enter into a composite scheme for generation and sale of electricity in more than one State.

ORDER :

The petitioners pray for a Writ of Certiorari calling for records relating to the orders in petition No.176/MP/2019 dated 05.02.2020 passed by the 1st respondent holding that the 2nd respondent / NTPC has to pay safeguard duty and GST to the 3rd respondent and that the 2nd respondent is entitled to claim the said amount from the petitioner DISCOMs on back-to-back basis and quash the said order as illegal, arbitrary, discriminative and without jurisdiction and contrary to the provisions of the Electricity Act, 2003 and agreement entered into by the parties and pass such other order.

2. The factual matrix of the case in nut shell is thus:

(a) The petitioners are the Southern and Eastern Power Distribution Companies (DISCOMs) of Andhra Pradesh. The 2nd respondent is the National Thermal Power Corporation Limited (NTPC) and the 3rd respondent is a private Solar Power Generating company, 1st respondent is the Central Electricity Regulatory Commission (CERC). Petitioners are constituted under the Companies Act and are wholly governed by the Government of A.P. They procure power form the State and Central generating stations and also from private generating stations to supply to the end consumers of the State of A.P. Pursuant to its power distribution policy, the petitioners entered into a Power Sale Agreement (PSA) with the 2nd respondent on 11.12.2017 for supply of 250 MW of solar power under Bundling Scheme i.e., Solar Power to be bundled with thermal power in the ratio of 2 : 1. The 2nd respondent would procure solar power from the Solar Power Developer (SPD) who will be selected through completive bidding process and after bundling with thermal power in the ratio of 2:1, the 2nd respondent will supply to the petitioners at the tariff that would be obtained in the bidding process for solar power and the total tariff of such bundling power shall be proportionate to the cost of such a bundled power. In the event, the thermal power cost is higher than the tariff of the solar power, the petitioners are at liberty to purchase only solar power and reject the thermal power component.

(b) While so, the 2nd respondent following bidding process, selected the 3rd respondent who is a SPD to supply solar power at a tariff of Rs.3,15 ps per unit from their 250 MW solar power plant proposed at Kadapa Ultra Mega Solar Park for 25 years from the date of commission of their project. The respondents 2 and 3 entered into a Power Purchasing Agreement (PPA) dated 07.02.2018 in this regard but the petitioners are not privy to the said agreement. The 3rd respondent with a delay of three months commissioned part capacity of 200 MW.

(c) As per the PSA entered into by the petitioners and 2nd respondent, the disputes if any shall be referred to Appropriate Commission and further, the PSA shall come into force after the approval of Appropriate Commission. The phrase ‘Appropriate Commission’ has been defined in the PSA. As per PSA, the entire power of the SPD i.e., the 3rd respondent was agreed to be sold to the petitioners in Andhra Pradesh state. Due to all these facts, APERC alone is the appropriate Commission as per Section 86 of the Electricity Act, 2003 (for short ‘Act, 2003’). That is why, with the consent of 2nd respondent, the petitioners have submitted PSA to the APERC for approval with regard to the procurement of the power. Pending the proceedings before the APERC, the 3rd respondent commissioned the project with a part capacity of 200 MW on 03.05.2019 and with a delay of three months.

(d) The APERC vide its common order dated 05.10.2019 granted approval to the procurement of 750 MW from NTPC, 250 MW from NTPC and 750 MW from SPCL with the conditions mentioned thereon. The SPDs filed O.P. No.368/2019 before appellate Tribunal for electricity at New Delhi and an interim stay was granted.

(e) While so, the petitioner came to know that the 3rd respondent filed a petition No.176/MP/2019 dated 14.06.2019 against the 2nd respondent before the 1s